Attorney general nominee Merrick Garland is likely to face numerous tests early on at the Department of Justice (DOJ) as the Biden administration looks to quickly turn the page on the Trump era.
The circuit court judge, who’s expected to be confirmed by the Senate this week, will inherit a Justice Department that had been mobilized to protect former President Trump’s personal and political interests using sweeping theories of executive power.
That means Garland will be under the microscope from day one to see how he addresses the previous administration’s erosion of the DOJ’s independence. At his confirmation hearing last month, Garland pledged to lead the nation’s top law enforcement agency without political interference.
“I would not have taken this job if I thought that politics would have any influence over prosecutions and investigations,” he told senators. “I am the United States’s lawyer. I will do everything in my power … to fend off any effort by anyone to make prosecutions or investigations partisan or political in any way.”
That approach is sure to be welcomed by critics of the previous administration after years of watching the department go after Trump’s opponents and intervene on behalf of his friends.
But Garland will be tested immediately with an array of politically sensitive issues confronting federal prosecutors.
Foremost among them will be whether to take the unprecedented step of investigating and potentially prosecuting a former president following accusations that Trump stoked the Jan. 6 riot that overran the Capitol and left five people dead.
The department is also carrying out a tax investigation into President Biden’s son Hunter Biden that is being closely watched by Republicans.
And just last week it was revealed that the Justice Department under Trump declined to investigate former Transportation Secretary Elaine Chao, the wife of Senate Minority Leader Mitch McConnell (Ky.), after a government watchdog found that she had used her position to help family members.
Garland’s pledge of independence will be measured by how the DOJ navigates these politically thorny matters and others that have carried over from the Trump era.
“The immediate challenge that I think Merrick Garland will face is how to deal with all the pending criminal investigations,” said former Rep. Brad Miller (D-N.C.), an outspoken critic of the Trump Justice Department.
“In the past, we’ve thought there needs to be a separation between the president — or anyone who’s really exercising political power — and prosecution,” Miller said. “And now we’ve got a set of issues that all have political consequences. Whatever Merrick Garland does, most Republicans in politics are going to say it was politically motivated.”
Still, Miller argued, the attorney general-designate can and should act in a way that is consistent with the norm that criminal prosecutions should proceed without political considerations.
Critics say that former Attorney General William Barr trampled on that norm with his handling of criminal matters relating to Trump’s allies. The DOJ under his leadership overruled career prosecutors’ sentencing recommendation for Roger Stone, after the former Trump adviser had been found guilty of lying to Congress and witness tampering.
Federal prosecutors also abruptly withdrew criminal charges last year against Trump’s former national security adviser, Michael Flynn, as he was awaiting sentencing. Trump ultimately granted both Stone and Flynn clemency.
In more personal matters, the department intervened on Trump’s behalf against those close to him who planned to reveal embarrassing information in tell-all books and in a defamation lawsuit from E. Jean Carroll, a magazine columnist who accused the former president of sexual assault in the 1990s.
“There’s been deep politicization of the Justice Department. It was quite widespread over the last four years,” said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice.
Both Garland and Biden have sought to assure the public of a new approach at the DOJ, with the president promising to leave prosecutorial decisions up to department officials and staying out of discussions on politically charged investigations — a stark contrast with Trump, who would routinely weigh in, often on Twitter.
Justin Levitt, who served as deputy assistant attorney general in DOJ’s civil rights division during the Obama administration, said establishing those boundaries will be important for the new leadership to maintain its credibility in the department’s efforts.
“It is entirely proper for the White House to be consulting with DOJ leadership on broad institutional priorities,” said Levitt, who’s now a professor at Loyola Law School in Los Angeles. “But it’s 100 percent improper to be directing individual cases — something we saw way too much of in the last administration. But already the mandate has gone out that that is not something we’re going to see happen this time around.”
Meanwhile, Weiser believes it will take more than a change in personnel to restore the Justice Department’s reputation after four years of Trump.
“This rot is still there. I don’t just mean within the institution, which it is. But I think that even once it is excised — and even if the perpetrators of these violations at DOJ, if those politicizing are no longer there — there is still work to do, not just to restore the functioning of the institution, but shoring up the guard rails to make sure it won’t be politicized again,” she said.
“Once the dam breaks you really need to strengthen it a lot, it’s not just plugging the hole.”